Riccardi v. United States

• Decision Date: 24 March 1977
• Docket Number: No. 76 C 2190.,76 C 2190.
• Parties: Ciro RICCARDI, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of New York

428 F. Supp. 1059

Ciro RICCARDI, Petitioner, v. UNITED STATES of America, Respondent.

No. 76 C 2190.

United States District Court, E. D. New York.

March 24, 1977.

Ciro Riccardi, pro se.

David G. Trager, U.S. Atty., Brooklyn, N.Y., by Stanley Greenidge and Allan K. Sleppin, Sp. Attys., Brooklyn, N.Y., for respondent.

MEMORANDUM AND ORDER

PLATT, District Judge.

Petitioner has filed, pro se, a motion to vacate, set aside, or correct a sentence imposed upon him by this Court. Title 28 U.S.C. § 2255.

On May 29, 1975, petitioner and a co-defendant, Ronald Gigliotti, were convicted after a jury trial of collecting and attempting to collect an extension of credit through the use of violence and threats of violence in violation of Title 18 U.S.C. § 894. On August 29, 1975, the date set for sentencing, Mr. James LaRossa, petitioner's trial counsel, advised the Court of a letter from Dr. Joseph Carlisi which had not been referred to in the presentence report or included among the other presentence materials submitted to the Court.¹ The letter, dated June 20, 1975, stated that the petitioner had been under Dr. Carlisi's care since July 11, 1974, that he had in the past suffered from "acute anxiety, depression, feelings of futility and many psychosomatic complaints". The Doctor added that "he has told me recently that he is coming up for sentencing and there has been a complete relapse of the psychiatric condition that I worked so hard to control". Mr. LaRossa further advised the Court that Riccardi's psychiatric problems "go back to his early schooling".² Mr. LaRossa said, however, that: "I don't suggest to your Honor that in any way they rose to the level whereby Mr. Riccardi could have defended this action by insanity or any such thing. That is not the purpose of my submitting this to the Court."³

The Court, concerned over the revelation of the petitioner's prior psychiatric history, sentenced him on Count Two of the indictment to twenty years imprisonment and ordered a psychiatric study pursuant to Title 18 U.S.C. § 4208(c). The Court stated that the sentence was subject to modification in accordance with Title 18 U.S.C. § 4208(b).

Free on bail and apparently anticipating a sentence modification, petitioner voluntarily visited Dr. Train on November 25, 1975. Dr. Train reported in a letter dated February 2, 1976 that petitioner "had full factual and rational understanding of his legal position", had "no delusions or hallucinations", was "oriented fully and his memory was intact", and "his judgment is not grossly impaired". Dr. Train concluded that "there is no evidence of this man being a sociopathic personality and no history of any significant anti-social behavior." Dr. Train recommended that the petitioner be placed on probation.

On January 5, 1976, petitioner was committed pursuant to the Court's sentence, to the Federal Medical Center for Federal Prisoners at Springfield, Missouri, where he began psychiatric examination and testing under Alan Weible, Case Manager, James M. Doolos, M.D. and Staff Psychiatrist, Emory Varhely, Ph.D., and Chief of the Psychology Service, and Delane Kinney, Psychologist Intern.

Mr. Weible's report showed that the petitioner was functioning in the bright-normal range of intelligence, and was "a normal healthy male", with a "mild neurosis." Mr. Weible concluded that "there is no evidence of any psychosis at this time."

Doctor Doolos' report stated that the petitioner's behavior was "within normal limits," that he was "coherent, relevant, and logical, . . . has no delusions and no hallucinations" and that his "orientation is good to time, place, and person." Doctor Doolos concluded that there was no evidence of any psychosis and recommended no medication.

Dr. Varhely and Delane Kinney's report stated that a battery of psychological tests administered to the petitioner reflected that he was "tense, restless, fretful, and overly fatigued" and that he was depressed and anxious. The report concluded that "Mr. Riccardi evidences no signs of a psychotic disorder or an antisocial personality disorder", and that his symptoms "have probably been exacerbated by current situational stress."

After the psychiatric study was completed, the petitioner was returned to New York for further proceedings. Again, apparently at his own request, petitioner was examined for the second time by Dr. John Train who reported in a letter dated April 14, 1976 that "at this time, as expected, his mental state is aggravated with agitated depression and anxiety". Dr. Train stated that the petitioner had described his experience in prison as "a nightmare". Dr. Train concluded that "it is my considered opinion that he is not a psychopathic anti-social person and not a threat to society" and requested that the petitioner be placed on probation.

However, on April 19, 1976, while awaiting removal to the Court, the petitioner attempted suicide by hanging. When the Court was made aware of this incident, it adjourned the proceeding and on April 23, 1976, ordered another psychiatric examination of petitioner by Dr. Edward Falsey, an independent psychiatrist agreeable to the defense and to the prosecution.

Dr. Falsey detailed his findings in a letter to the Court dated May 25, 1976. He stated that he relied on the prior psychiatric reports and his own interviews with the petitioner in reaching his conclusion that the petitioner was suffering from "ganser syndrome". Dr. Falsey said that symptoms of the illness include a "mild degree of mental defect and hysterical symptoms of various kinds such as amnesia." He said that "the writers emphasize that ganser syndrome may be confused with voluntary malingering in prisoners who want to escape indictment."

On May 28, 1976, after considering all of the aforementioned reports, this Court modified the petitioner's sentence to eight years in prison pursuant to Title 18 U.S.C. § 4205(b)(2) and recommended that he be given further psychiatric help. In accordance with this recommendation and special arrangements made by the Court, petitioner was committed to the psychiatric ward of the Federal Correctional Institution at Danbury, Connecticut. The chief of the psychiatric service of that institution, Dr. Frank A. Jones, Jr. reported in a letter to the Court dated August 26, 1976, that the petitioner showed no evidence of psychosis or depression. Dr. Jones agreed with Dr. Falsey that the petitioner suffered from ganser syndrome, which he stated was described as an "adjustment reaction of adult life" and which he said is "frequent in prisoners". A second letter was submitted by Dr. Jones dated October 26, 1976, calling to the Court's attention a disciplinary infraction committed by the petitioner.

After receiving the reports of Dr. Jones, and upon reconsideration of the facts of the case, this Court on December 21, 1976 further reduced the petitioner's sentence to six years imprisonment pursuant to Rule 35, Federal Rules of Criminal Procedure.

Petitioner argues herein that "he was insane" at the time of his trial and sentencing and that this Court's failure to hold a competency hearing prior to sentencing now entitles him to such a hearing.

In United States v. Miranda, 437 F.2d 1255 (2d Cir. 1971), cert. denied, 409 U.S. 874, 93 S.Ct. 207, 34 L.Ed.2d 126 (1972), the Court held that a District Court must hold a hearing pursuant to § 2255 whenever a claim of mental incompetence at the time of trial is made if the movant has raised detailed and controverted issues of fact. The petitioner in Miranda claimed that he was under "heavy narcotic sedation" when he was brought to Court and pleaded guilty. The District Court without a hearing refused to order a mental examination pursuant to Title 18 U.S.C. § 4244⁴ relying on (1) the medical records of the West Street Detention Facility and the Rikers Island Prison Hospital which showed that Miranda had been found "not psychotic"; (2) the fact that he appeared coherent at the time of his plea and sentence; and (3) the presentence report which indicated that he was "relevant coherent, and direct, showing a remarkable memory for dates and events in his life." The Court of Appeals reversed the denial of the application without a hearing, holding that the records did not conclusively show that the prisoner was entitled to no relief. A number of cases have similarly ordered a hearing in cases where the facts did not conclusively show that the prisoner was entitled to no relief. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973); Taylor v. United States, 487 F.2d 307 (2d Cir. 1973); Saddler v. United States, 531 F.2d 83 (2d Cir. 1976).

Most recently, in Wojtowicz v. United States, 550 F.2d 786 (2d Cir. 1977), the Court ordered a hearing where the petitioner claimed that on the morning of the sentencing he attempted to take a drug overdose and slashed his wrists and thus could not comprehend the sentencing proceedings. The Court said that affidavits submitted by the petitioner's attorney and his family somewhat supported this claim. The Court held (at p. 790) that:

"the apparent regularity of the proceedings cannot `conclusively show' that appellant's claim, which is based on facts outside the record, is without merit." (Emphasis added)

Numerous other cases in this Circuit have considered when a Federal trial Court is required to hold a hearing pursuant to § 4244 to decide the question of the competency of a defendant.⁵ In United States v. Knohl, 379 F.2d 427 (2d Cir.), cert. denied, 389 U.S. 973, 88 S.Ct. 472, 19 L.Ed.2d 465 (1967), the trial Court was presented with a letter from a doctor which said that the defendant's physical and mental condition would make "difficult, and very likely pointless, proper consultation with his counsel". The defendant also submitted to the Court affidavits from his attorney and himself stating that he...